Tukaram Maruti Chavan
Vs. Maruti Narayan Chavan (Dead) by LRS. &Ors [2008] INSC 1560 (15
September 2008)
Judgment
IN THE SUPREME COURT
OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO. 6158 OF 2002 Tukaram
Maruti Chavan .......Appellant(s) VERSUS Maruti Narayan Chavan (Dead) by LRs.
& Ors. .Respondent(s)
TARUN CHATTERJEE, J.
1.
This
is an appeal by special leave against the judgment and order dated 9th of June,
1999 of the High Court of Judicature at Bombay in Writ Petition no. 4600 of
1983, whereby the High Court had affirmed the decision of the courts below.
2.
The
relevant facts leading to the filing of this appeal, as emerging from the case
made out by the appellant may be summarized as follows:
3.
The
dispute arose out of the provision of the Bombay Tenancy and Agricultural Lands
Act, 1948 (hereinafter referred to as "the Act") relating to the land
being Gat No 44, measuring 5 Hectares and 24 Acres in village Malangaon,
Kavathe, Mahankal Tahsil of Sangli District in the state of Maharashtra (in
short "the disputed land"). Late Smt. Narmadabai who was a widow, was
the original landowner of the disputed land. She died in 1964 leaving behind
her two sons Ramchandra and Laxman Bhau Sutar. On 1st of April, 1957, i.e. on
the Tiller's Day, the Appellant was in cultivation of the disputed land. The
original tenant named Maruti died subsequently in 1994 during the pendency of
the Writ Petition in the High Court of Judicature at Bombay. The original
tenant had initiated proceedings under Section 32G of the Act before the
Additional Tahsildar, Kavathe Makhanlal, and the case was decided in his favour
with the purchase price of the disputed land being fixed. Thereafter, one of
the heirs of the deceased landowner Narmadabai, named Laxman, preferred an
appeal to Appellate Authority against the said order. After the matter was
remanded back to the Additional Tehsilder, again an order affirming the
previous position was passed in favour of the tenant under Section 32 G. This
time, the other heir of Late Smt. Narmadabai, namely Ramchandra, challenged the
said order before the Sub-Divisional-Officer, Miraj, and he again by his order
dated 31st of March, 1978, remanded the matter to the Tahsildar for a detailed
enquiry and decision on the following points:
(1) "The clear title
of the disputed land of the applicant Ramchandra should be enquired.
(2) The point of
giving notice u/s 32-F of the Act to the landlord and the Agricultural Lands
Tribunal should be enquired as per the provisions under Section 32-F of the
Act."
4.
When
the matter came up before the Tahsildar, he passed an Order holding the 2nd
Respondent as the sole owner of the disputed land. The purchase of the disputed
land by the Appellant was therefore declared to be ineffective for want of
notice under Section 32- F and the disputed land was ordered to be disposed of
under Section 32 P of the Act. Thereafter, the Appellant preferred a revision
before the Maharashtra Revenue Tribunal but the same was dismissed. Being
aggrieved by the decision of the Tribunal, the Appellant filed a Writ Petition
before the Bombay High Court on 28th of December, 1983. The Bombay High Court
by its impugned judgment and order dated 16th of April, 1999, dismissed the
said Writ Petition on the ground that the Respondent (Ramchandra) was the sole
owner of the disputed land in pursuance of the letters of administration
obtained by him from the Civil Court. It is this decision of the High Court,
which is impugned in this appeal in respect of which the Writ Petition was
filed.
5.
During
the pendency of the Writ Petition before the High Court, Respondent No 2
executed a sale deed of the disputed land and though he was duty bound to
inform the Court about this deed, he did not inform the same to the Court.
6.
The
main issue that was framed by the High Court in deciding the above-mentioned
Writ Petition was whether giving of notice under Section 32 F was mandated for
the tenant and whether on failure of giving such notice, the tenant had lost
the right of purchase and whether the orders of the Tahsildar, the Appellate
Court i.e. the Sub Divisional Officer and the Revisional Court i.e. the
Maharashtra Revenue Tribunal were liable to be interfered with. It was against
this background that the High Court had held that section 32 F is mandatory in
nature and there has to be a strict compliance of it. The High Court went on to
say that inspite of the fact that the tenant had initiated proceedings under
section 32 G and even if he had paid some instalments towards the price of the
land, the same cannot be considered as substantial compliance resulting in
dispensation of the mandatory requirement of section 32 F. Therefore,
considering the fact that the tenant had failed in his duty to issue a written
notice to the owner of the land i.e. Respondent No. 2, as required under
Section 32 F, he has lost his right to purchase the disputed land. The Writ
Petition was therefore dismissed by the High Court. Feeling aggrieved by the
aforesaid decision of the High Court, this Special Leave Petition was filed
which, on grant of leave, was heard in presence of the learned counsel for the
parties.
7.
We
have heard the learned counsel for the parties and examined the impugned
judgment of the High Court and also the orders passed by the Tahsilder,
Appellate Court and the Revisional Court. We find that the High Court noticed
the provision of Section 32 F of the Act, in so far as it is relevant, which
reads as follows:
"(1)
Notwithstanding anything contained in the preceding sections,- (a) where the
landlord is a minor, or a widow, or a person subject to any mental or physical
disability, the tenant shall have the right to purchase such land under section
32 within one year from the expiry of the period during which such landlord is
entitled to terminate the tenancy under section 31 [and for enabling the tenant
to exercise the right of purchase, the landlord shall send an intimation to the
tenant of the fact that he has attained majority, before the expiry of the
period during which such landlord is entitled to terminate the tenancy under
section 31]:
[Provided that where
a person of such category is a member of a joint family, the provisions of this
sub-section shall not apply if at least one member of the joint family is
outside the categories mentioned in this sub-section unless before the 31st day
of March, 1958 the share of such person in the joint family has been separated
by metes and bounds and the Mamlatdar on inquiry is satisfied that the share of
such person in the land is separated, having regard to the area, assessment, classification
and value of the land, in the same proportion as the share of that person in
the entire joint family property and not in a larger proportion].
6 (b)--------------
(omitted, as it is not relevant for our purpose).
(1A) A tenant
desirous of exercising the right conferred on him under sub- section (1) shall
give an intimation in that behalf to the landlord and the Tribunal in the
prescribed manner within the period specified in that sub-section."
8.
The
High Court further went on to refer Section 31 (3) of the Act, which so far as
it is relevant reads as follows:
" (3) Where a
landlord is a minor, or a widow, or a person subject of mental or physical
disability, then such notice may be given [and an application for possession
under section 29 may be made,]- (i) by the minor within one year from the date
on which he attains majority;
(ii) by the
successor-in title of a widow within one year from the date on which her
interest in the land ceased to exist;
(iii) within one year
from the date on which mental or physical disability ceases to exist; and
[Provided that where a person of such category is a member of a joint family,
the provisions of this 7 sub-section shall not apply if at least one member of
the joint family is outside the categories mentioned in this sub-section unless
before the 31st day of March, 1958 the share of such person in the joint family
has been separated by metes and bounds and the Mamlatdar on inquiry, is
satisfied that the share of such person in the land is separated having regard
to the area, assessment, classification and value of the land, in the same
proportion as the share of that person in the entire joint family property, and
not in a larger proportion.]"
9.
We
have examined the aforesaid provisions of the Act on which the High Court had
placed strong reliance. In our view, the interpretation given by the High Court
in the impugned judgment of the aforesaid provisions cannot be faulted with. It
must be said that the High Court in its impugned judgment, correctly noticed
that sub-section (3) of section 31 provides that the landlord under disability
and intending to exercise a right under this chapter shall give a notice
terminating the tenancy and if the landlord is a widow then the notice can be
given by the successor-in-title of the widow within one year from the date on
which her interest in the land ceases to exist.
In the present case
when the widow Narmadabai died, she ceased to have interest in the land and
therefore the right of Ramchandra, as her successor-in-interest, to give notice
under section 31 to the tenant gets extended for one year from the death of
Narmadabai, i.e. till the 12th of January, 1965.
10.
The
learned counsel on behalf of the Appellant contended that if Section 31 and 32
F are read together, then the tenant is not required to give any notice to the
landlord because neither Narmadabai nor her successor-in-interest ever gave any
notice to the tenant under Section 31 of the Act.
Counsel for the
Respondent on the other hand contended that Section 32 F is a complete section
in itself and the provision of the earlier sections cannot influence or have
over riding effect.
He therefore
contended that whatever be the right of the landlord under section 31, the same
gets separated by virtue of the provisions of section 32 F. This contention was
negated by the counsel for the Appellant arguing that section 32 F cannot be
said to have over riding effect on all the earlier sections.
Against this
backdrop, the High Court arrived at the following findings:- 9 "
Sub-section (2) of section 32 F provides that the provisions of section 32 to
32 E (both inclusive) and section 32 G to 32 R (both inclusive) shall so far as
may be applicable, apply to such purchase.
As against this,
section 32 F begins with the wording `Notwithstanding anything contained in the
preceding sections...'. Both these sections namely, section 32 F(1) and 32 F(2)
if interpreted in proper prospective and harmoniously keeping in view the
object of section 32 F, then it becomes clear that it could be said that
sub-section (2) of section 32 F is an exception to sub-section (1) of section
32 F but at the same time it has to be borne in mind that exception carved out
by sub- section (2) is limited to the sections referred to in it, namely,
section 32 to 32 E (both inclusive) and 32 G to 32 R (both inclusive). Since
section 31 is not included in sub-section (2) of section 32 F and since section
32 F in sub-section (1) provides `Notwithstanding anything contained in the
preceding sections', then it has to be held that right given to the landlord
under section 31 has nothing to do with the right given to the tenant under
section 32 F for purchasing the land and consequently it has to be held that a
tenant in this case was under legal obligation or statutory duty to give notice
of his intention to purchase the land as contemplated under section 32 F.
The High Court
further went on to observe:
".....if section
32 F is held to be mandatory in its character then there has to be a strict
compliance thereof. Secondly, that the tenant had initiated proceedings under
section 32 G, that order was set aside by the SDO in the appeal and the matter
was remanded for fresh enquiry in respect of the 10 two points referred to
above. Therefore, even if the tenant had initiated proceedings under section 32
G and even if he had paid some installments and the price of the land, the same
cannot be considered as substantial compliance resulting in dispensation of the
mandatory requirement of section 32 F...."
11.
Having
heard the learned counsel for the parties and after examining the judgment
under Appeal as well as the orders of the other authorities, and other
materials on record including the depositions of the parties before them, we
are of the view that this appeal deserves to be dismissed for the reasons set
out herin after:
12.
In
our view, the High Court correctly pointed out that the provisions of Section
32 F are independent in nature and are separate from the provisions under
Section 31 of the Act. The exception mentioned under Section 32 F (1) to
subsection (2) is limited to the sections referred to in it, i.e., from Section
32 to 32 E (both inclusive) and 32 G to 32 R (both inclusive).
Further the expression
"Notwithstanding anything contained in the preceding sections" under
sub-section (1) of Section 32 F are of paramount importance. Considering the
fact that Section 31 is not included in the sections mentioned under
sub-section (2) of Section 32 F, and the expression "Notwithstanding
anything contained in the preceding sections" under sub- section (1) of
Section 32 F, we are of the view that the right given to the landlord under
section 31 has nothing to do with the right given to the tenant under Section
32 F for purchasing the land and consequently it has to be held that the
appellant in this case was under a legal obligation or statutory duty to give
notice of his intention to purchase the land as required under Section 32 F. We
also agree with the view of the High Court that even if the proceedings were
initiated under Section 32 G by the tenant initially, he cannot claim to be
exempted from complying with the mandatory requirement of serving a notice to
the landlord as contemplated under Section 32 F which mandated under the Act
and commands strict compliance thereof.
13.
In
the case of Anna Bhau Magdum since deceased by his LRs v. Babasaheb Anandrao
Desai [1995 (5) SCC 243], this Court held that there is no automatic purchase
of a land by a tenant in cases where the landlord happens to be, inter alia, a
widow and the right of purchase can be effective only when exercised in
accordance with the provisions of section 32 F, i.e., by giving a notice in
writing within a period of one year from the date on which the right of the
landlord to terminate the tenancy comes to an end after the death of a widow.
In the present case, therefore, the Appellant was duty bound to comply with the
mandatory requirement to serve a notice intending to purchase the disputed land
under Section 32 F to the landlord as well as to the Tribunal. In the case of
Appa Narsappa Magdum since deceased by his LRs v. Akubai Ganapati Nimbalkar and
Ors [1999 (4) SCC 443], this Court held that the intimation to be provided by
the tenant under Section 32 F (1) (a) has to be given according to the
provisions laid down in the said section. This Court, in the said case, had
negated the contention that the concerned Act, being a welfare legislation,
enacted for the benefit of the tenants, should be construed in a liberal
manner. The Court in its judgment stated in paragraph no. 4 that "We
cannot accept this submission because language of the Sections 32F and 31 is
quite clear and the period of one year will have to be counted in accordance with
the said provisions and not from the date of the knowledge of the tenant. The
provision of law being clear, we cannot in such a case, grant relief on the
basis of equity."
Again in Sudam Ganpat
Kutwal v. Shevantabai Tukaram Gulumkar [2006 (7) SCC 200], relying on counsel
for the parties in their submissions, this Court has clearly summarized the
position of law. The paragraphs relevant to this case are 23 (c) to 23 (e)
which have been laid down herein:
"23 (c) A
landlord has a right to give notice and make an application for possession
after terminating the tenancy, if he wanted the land bonafide for personal
cultivation, provided the notice was served on the tenant on or before
31.12.1956 (with copy to the Mamlatdar) and application for possession under section
29 was filed on or before 31.03.1957.
(d) A landlord widow
also entitled to make an application for possession under sub-section (1) of
section 31 of the Act. Sub-section (3) of section 31, which is an enabling
provision, extends the time within which the widow can seek possession under
section 31 (1) of the Act, beyond 31.12.1956. As a result, where the landlord
is a widow, then the notice required under sub-section (1) of section 31 may be
given and the application for possession under section 29 may be made by her so
long as her interest in the land exists. Such notice can also be given by the
successor-in-title of the widow within one year from the date on 14 which the
interest of the widow in the land ceases to exist.
(e) Where the
landlord is a widow [and she does not exercise her right under section 31 (1)
of the Act], the right to purchase under the deemed purchase is postponed till
the expiry of the period during which such (disabled) landlord is entitled to
terminate the tenancy under section 31 (3). The tenant desirous of exercising
such right shall, however, give an intimation in that behalf to the landlord
and the Tribunal within one year thereafter, as required under section 32 F
(1-A).
Consequently, where
the landlord, being a widow as on 1.4.1957, does not choose to terminate the
tenancy for personal cultivation, the tenancy continues during her lifetime and
on the death of the widow, her successor-in-title will have the right to
terminate the tenancy within one year from the date of the death of the widow.
The tenant has the right to purchase such land, under section 32 within one
year from the expiry of the period during which such successor-in-title of the
widow is given the right to terminate the tenancy under section 31 (3) by giving
an intimation as required under section 32 F (1-A)."
14.
It
is pertinent to mention here that the above-mentioned case has been cited by
the Appellants to contend before us that the required notice under section 32 F
is not mandatory in its nature. However we do not agree with this argument
advanced by the learned counsel appearing on behalf of the Appellants.
The required notice
is not mandatory only in a case when a widow land lady has already exercised
her right under section 31 (1), i.e. when during her life time, a notice is
served to the tenant that the landlady requires the land bonafide. Once a
notice under section 31 (1) is served by such a widow landlady, the further
benefit of section 31 (3) is not available.
Paragraph No. 23 (f)
at page no. 210 of the above-mentioned case and paragraph no. 27 of the same
are of relevance to illustrate our point.:
"23.(f) Where a
landlord, who is a widow, exercises her right of termination and secures
possession of part of the tenanted land for personal cultivation under section
31 (1) of the Act, then there is no question of her successor-in- title giving
a notice of termination within one year from the date on which the widow's
interest ceases to exist. When section 31 (3) ceases to apply, section 32 F
also will not apply and there is no need for the tenant to give any intimation
under section 32 F (1-A).
"27. Learned
counsel for the respondent relied on the decisions of this Court in Amrit
Bhikaji Kale v. Kashinath Janardhan Trade, Anna Bhau Magdum v. Babasaheb Anadrao
Desai, Appa Narsappa 16 Magdum v. Akubai Ganapati Nimbalkar and Balchandra
Anantrao Rakvi v. Ramchandra Rukaram to contend that the tenant has to issue a
notice under section 32 F within the period prescribed and if he fails to do
so, he loses the right to purchase the land and the landlord will become
entitled to the same absolutely. These were all cases where the landlord under
disability had not sought possession for personal cultivation under section 31
(1) and where admittedly, sections 31 (3) and 32 F applied and consequently,
there was an obligation on the part of the tenant to send an intimation under
section 32 F (1-A). None of the cases related to a widow landlord who had
terminated the tenancy during her lifetime and taken possession of a portion of
the tenanted land. Therefore, the said decisions will not apply".
15.
The
above-mentioned proposition clearly establishes the fact that with regard to
Section 31 (1), once a notice has been served under that provision, the further
benefit of Section 31 (3) cannot be obtained by the legal heirs of the widow.
But, in case when Section 31 has not been availed of by the widow as we can see
in the present dispute, Section 31 (3) would definitely apply.
16.
The
learned counsel appearing on behalf of the appellant has argued before us that
the Appellant could not serve a notice to the landowner since he was not sure
about the title of the disputed land owing to a dispute between the two sons of
Late Smt. Narmadabai who were claiming the title of the disputed land. We
cannot accept this contention of the Appellant. The order passed by the
Tahsildar, Kavathe Mahankal, lays down the fact that Shri Ramchandra,
Respondent No 2 in this case, had produced a certified copy of the Judgment and
order dated 28th of April, 1966, passed by the Joint Civil Judge Sr. in Misc.
Application No 25 of
1965 in which it has been declared that Shri Ramchandra is the owner of the
disputed land on the basis of the will executed by his mother Late Smt.
Narmadabai. The appellant also in his deposition admitted that:
"The owner of
the said land was Smt. Narmadabai Bhau Sutar. Narmadabai died before 10/12
years.
Ramchandra Bahu Sutar
filed suit on the basis of will, and got transferred the land of Narmadabai in
his name".
17.
The
original tenant, even after the second remand had clearly admitted before the
same court in his statement dated 16th of March, 1981, that Shri Ramchandra
alone had become the sole owner of the disputed land by virtue of the decision
of the Civil Court on the strength of the will. Going by the above mentioned
records, we are of the firm view that the Appellant had a complete knowledge
about the title of the disputed land in question. Therefore his submission that
he had no knowledge about the real owner, cannot be accepted.
18.
Further
for the sake of argument even if we assume that the Appellant had no knowledge
about the title of the disputed land, nothing prevented him from serving a
notice as to his intention of purchasing the land to both the brothers
contesting for the disputed land or either one of them according to the
provisions of Section 32 F. This Court, in the case of Teja Singh and Others v.
State of Punjab and Another [1995 (4) SCC 540], has observed that in the matter
of land acquisition, service of notice on one of the co-owners is necessary and
will therefore be construed as service on all the co-owners. The appellant has
argued that he had on more than one occasion conveyed about his willingness to
purchase the land to both the brothers and that his intention to do so was
known by both of them. However, it does not absolve him from the duty of
providing a written notice in terms of Section 32 F of the Act.
Moreover, the
Appellant himself admitted before the Tahsildar, Kavathe Mahankal, that he had
not served any written notice to either of the two brothers mentioning his
intention. This can be identified from the statement of the Appellant on the
8th of October, 1976 and the 16th of March, 1981 whereby he stated:
"Narmadabai died
before 10-12 years. I have not served the notice on the owners. I have informed
them orally regarding the purchase from time to time. I have not served notice
in writing. There were disputes amongst the brothers. Because of that I could
not serve the notice regarding the purchase of the land as per section 32 (F).
Due to no knowledge of law I am not aware of the service of the notice".
19.
For
the reasons aforesaid, we are of the view that the High Court was justified in
passing the impugned judgment and there is no infirmity in the impugned order
for which we can interfere with the order of the High Court. Since we have
already held that the service of the notice under Section 32F was mandatory and
by failure to serve such a notice under the said section, the Appellant had
lost his right to claim the disputed land.
20.
Accordingly
the Appeal is dismissed. There will be no order as to costs.
..............................J.
[TARUN CHATTERJEE]
..............................J.
[AFTAB ALAM]
NEW
DELHI
September
15, 2008.
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